Senator Blumenthal Happy That SESTA Will Kill Small Internet Companies

from the this-is-a-problem dept

So, earlier today the Senate Commerce Committee held a two and a half hour hearing about SESTA -- the Stop Enabling Sex Traffickers Act of 2017. The panelists were evenly split, with California Attorney General Xavier Becerra and Yiota Souras from the National Center for Missing and Exploited Children being in support of the bill, and Professor Eric Goldman and Abigail Slater from the Internet Association worrying about the impacts of SESTA (notably, both highlighted that they're not against all changes to CDA 230, they just want to be quite careful and are worried about the language in this bill). I was actually somewhat surprised that the hearing wasn't as bad as it could have been. There certainly was some grandstanding, and some insistence that because SESTA says it will go after sex trafficking, it obviously will -- but many Senators did seem willing to listen to concerns about the bill and how it's written. Much attention was paid to the sketchy "knowledge" standard in the bill, which we wrote about this morning. And that's good -- but there was a fair bit of nonsense spewed as well.

Perhaps the most problematic comments were from the bill's co-author, Senator Richard Blumenthal, who has been attacking CDA 230 since his time as Connecticut's Attorney General. While you can watch the entire hearing, I created a short clip of Blumenthal's questions (which, oddly, C-SPAN won't let me embed here) so I'll transcribe it:

Blumenthal: I think I've said why I support this legislation, which I helped craft, and we've tried to do it carefully. And we tried to listen to the industry. We've tried to listen really closely to some of the concerns that have been raised this morning by Mr. Goldman. For example, the idea that this legislation will cause sex trafficking to -- I'm using your word -- proliferate. Hard to believe. Mr. Becerra, what do you think and will this measure cause sex trafficking to proliferate?

So... the idea that Blumenthal listened carefully is laughable on its face. He's been fighting this issue since at least 2010 when he went after Craigslist for ads he didn't think they should have on the site. And in Blumenthal's own testimony he admitted that forcing Craigslist to change how it worked only led to sex trafficking ads moving from Craigslist -- which cooperated very closely with law enforcement -- to Backpage and expanded their reach. I'm at a loss as to why we should take Blumenthal's word on what will happen when he admits his own actions targeted at sex trafficking in the past made the problem worse. To then mock Prof. Goldman for suggesting the same might happen here is... quite incredible.

Also, interesting that rather than asking Goldman to clarify his position first (he does later), Blumenthal starts by asking Becerra to back him up.

Becerra: I can't agree with what Professor Goldman has said. I think it's just the opposite. If we have a standard in place, then I believe the stakeholders within the internet community will come forward in ways we've seen before, but even more vigoroulsy, because they'll understand what the standard is, and I think that's so very important to make it clear for folks. The most important thing, Senator Booker sorta pointed this out, is we need to get the opponents of this measure to explain, in detail, what they would propose in place. Otherwise, it's always a moving target. It's Whac-a-mole. Someone needs to give us what a better bill looks like.

So, this is also bizarre and wrong. First, much of the discussion from Goldman and Slater (and us) was about the lack of any clarity around the "standard." The bill says that "knowing conduct" that "assists, supports or facilitates" sex trafficking can make a platform guilty of civil and criminal violations of the law. But "knowing conduct" is not clarified. And as we've seen in other contexts, including in the copyright realm, years-long fights can happen in court over what "knowledge" might mean. The famous YouTube/Viacom fight, that went on for nearly a decade, was almost entirely focused on whether or not YouTube had knowledge of infringement, and whether the law required "specific" knowledge or "general" knowledge. Nothing in this bill clarifies that.

Even worse, the term "knowing conduct" is dangerously vague. It could be read to mean that if the site does something that it knows that it is doing, and it leads to facilitating sex trafficking -- even if the site doesn't know about that outcome -- it would constitute "knowing conduct." Goldman had pointed this exact problem out earlier in the hearing, so for Becerra to insist that this is a clear standard is ludicrous.

Becerra is also confused if he thinks this will lead internet companies to "more vigorously" come forward. Coming forward with evidence of sex trafficking will then be turned around on them as proof of "knowledge." With this law in place, why would any internet company be more willing to come forward when that only increases liability?

Finally, the idea that opponents need to come forward with other language is similarly weird. SESTA's supporters are the ones demanding a massive change in the underpinning of the internet. Shouldn't the burden be on them to prove that this will help and not hurt? And, on top of that, it also ignores the fact that many opponents have come forward with different language (which I know as a fact because someone ran some alternative language by me a few weeks ago, and again earlier this week). So either Becerra doesn't know that or he's being disingenuous.

I'll cut the next section where Blumenthal says (misleadingly) that a proposal put forth from tech companies was to curtail or "eliminate" the ability of State AGs to pursue violations of the law (the proposal I saw simply clarified when and how they could go after sites) and Becerra eagerly says that would be terrible, as you'd expect.

Blumenthal: Let me ask, Mr. Goldman, do you really believe that this law would cause sex trafficking to proliferate?

Goldman: Thank you, Senator, for the opportunity to clarify that. Indeed, my concern is that we already see a number of efforts on the part of legitimate players to reduce sex trafficking promotion. To the extent that any of those companies decide 'I am better off turning off my efforts across the board, to try to reduce the knowledge that I have,' then that creates a larger number of zones that the sites will not be taking the legitimate effort that we want them to take. It creates an environment where there's more places for that to occur.

This is an excellent and succinct explanation of the problem. Under SESTA, the "knowledge" standard is so vague and unclear, that actually doing what Congress wants -- policing sex trafficking -- creates "knowledge" and makes these companies liable under the law. Blumenthal, of course, doesn't seem to get it -- or doesn't care.

Blumenthal: You know, I have a higher opinion of the industry than you do. I really believe that this law will raise the bar, will increase consciousness, and that far from trying to evade, or, in fact, deny themselves knowledge, so as to avoid any accountability, they will be more energetic. I absolutely really believe that most of these companies want to do the right thing and that this law will give them an increased impetus and incentive to do so.

WHAT?!? First off, if the idea is to give companies a greater impetus and incentive to do what they already want to do (as Blumenthal claims...) then threatening them with criminal and civil penalties for simply "knowing" that their platforms are used for illegal activity seems like a totally fucked up way of doing so. If you want to encourage platforms to do the right thing, then why is the entire bill focused on punishing platforms for merely knowing that their platform was illegally used? Second, if Blumenthal truly had a higher opinion of tech companies, why is he misrepresenting what Goldman said, and saying that companies would choose to avoid knowledge to "avoid accountability"? That's not the issue at all -- and is, indeed, self-contradictory with Blumenthal's own statements. Companies want to do the right thing to reduce sex trafficking, but this bill puts them in legal jeopardy for even researching if their platforms are used that way. That's the point that Goldman was trying to make and Blumenthal totally misrepresents.

And then it gets worse. Goldman points out a separate issue, noting that big companies like Google and Facebook may have the resources to "do more" but startups without those resources won't be able to take the steps necessary to avoid liability under the law:

Goldman: There's no doubt that the legitimate players will do everything they can to not only work with the law enforcement and other advocates to address sex trafficking and will do more than they even do today. At the same time, the industry is not just the big players. There is a large number of smaller players who don't have the same kind of infrastructure. And for them they have to make the choice: can I afford to do the work that you're hoping they will do.

Okay, and here's where things get absolutely fucked up. Note what Goldman is clearly saying here: this bill will wreak havoc on startups who simply can't afford to monitor everything that people do on their platforms. And then, Blumenthal's response is to say that those startups are criminals who should be prosecuted:

Blumenthal: And I believe that those outliers -- and they are outliers -- will be successfully prosecuted, civilly and criminally under this law.

WHAT THE FUCK?!? Goldman was talking about tons and tons of smaller companies -- or anyone who operates any online service that enables user comments, where they can't monitor everything -- and under this law will have to make the choice of whether they do any monitoring at all or face the risk of that being used against them, and Blumenthal's response is that they should be prosecuted.

Senator Blumenthal: those companies are not outliers and they're not criminals. They're thousands upon thousands of smaller internet companies, many based in your home state of Connecticut, that you apparently want to see shut down.

Re: We're screwed

There's still the possibility to set up something more decentralized, so that no single person/company would have the authority (or responsibility) to censor it. If I write a blog post, it shouldn't be up to me to host comments or hire a third-party service to do it.

Re: Re: Re: We're screwed

Well if that's all it takes...

I've got an amazing piece of legislation I'd like to pitch to you. It will stop murder entirely[1], end world hunger[2], and prevent the sun from going super-nova[3].

Unless you want murder, people starving, and the world to be consumed in a ball of fire, then clearly you need to support this legislation. Don't worry about what's in it, and certainly don't pay any attention to those buffoons talking about 'collateral damage', they are merely murder fanatics that want people to die and starve and burn up, and you don't want to be one of those kinds of people, do you?

[1] By defining murder in such a way that only deaths taking place in the rings of saturn count.

[2] I like to call this section, 'A modest proposal'.

[3] Effective for at least a few million, maybe even a few billion years.

CISPA was child's play

This is going to destroy the internet as we know it and it's wrapped up in "won't somebody puh-leeeeease think of the children". While fast/slow lanes are garbage and I'm glad it (for now, and only mostly) is fading, I am legitimately frightened for how this is going to shake things up.

This is the worst thing that could possibly happen, and now speaking against it is tantamount to protecting pedophilia to these people.

Re: CISPA was child's play

They have so much of this bill wrapped up in “protecting children” language that when it passes into law and it does nothing to help children and all of their arguments that it would are laid bare in front of them—impossible to run from or discredit, as hard as they would try—they will have no believable rebuttal. They will also offer no apology for supporting this legislation—only a Sean Spicer-esque “I regret supporting this” non-apology meant to evoke pity.

I will feel no pity for these men if this bill passes into law and does the opposite of what they say it will. That pity is reserved for the companies that this bill will run out of business.

Re: Re: Re: CISPA was child's play

Of course, because to do otherwise would be to admit that all those people telling them that they were not only wrong but wrong in a way that will cause significant damage were right, and they were wrong.

Since a politician is never wrong clearly it would be the fault of the companies for not doing enough, not trying or caring enough.

Re: Re: The Jungle

Clinton got rid of federal meat inspectors in favor of statistical samples (computer printouts) conducted by the meat cos.... BASED ON two or three fast-food deaths! (over a dozen people drowned last year harvesting abalone off the California coast) Instead of old inspectors calling on years of experience with the inspector's paycheck from tax dollars.'Nutrition Facts' now printed on OUR food are supposedly 'voluntary' but virtually eliminate local sources of food; 60% of Arizona's food supply comes from a single warehouse in Compton, CA, and Arizona grows the stuff. Safety? From a Public Health standpoint, universally introducing a product effectively eliminates gauging it's effect on the population. Want to see food production for yourself? Sorry, that's a felony in many states now.

Re:

Greenhouse Blumenthal

According to the Greenhouse extension, Mr. Blumenthal's highest contributors are Lawyers and Law firms... of course he wants this legislation. He's being paid to yell 'for the children' as loud as he can. He smells blood in the water.

I think you're misinterpreting him

And then, Blumenthal's response is to say that those startups are criminals who should be prosecuted:

I think what he meant was "all of those startups (no matter how small) do have the infrastructure to do the monitoring required by the bill, and only a few outliers will choose to forgo the monitoring that they're all definitely capable of doing". Which is stupid, but not nearly as stupid as your interpretation.

Re: Re: I think you're misinterpreting him

Blumenthal and Vietnam

You cannot mention Senator Blumenthal without mentioning that he served (safely) stateside during the Vietnam war (rich powerful relations) and then several times while running for the Senate that he served in Vietnam during the war.

So when Blumenthal went after Craigslist and foreseeable drove off the bad guys to somewhere much harder for law enforcement to keep tabs on them, which ended up making the situation worse, didn't he in fact knowingly participate in a venture that facilitated the commission of this sort of crime?

The guy has got the "IT'S A CRIME!" hammer in his hands and he is not afraid to use it. He's a lost cause, what we need is to get the senators that aren't deaf to the matter to see the many issues and just isolate Blumenthal. Though job, it's not like you can rally people up like the SOPA thing because many will see the bill as something good just because its stated purpose is to prevent sex trafficking... Though job.

Re: Where does the logic come from?

As a society, we have determined that quantity is better than quality when it comes to passing laws. If Congress were to pass 10 fewer laws this year than they did last year, we determine that they have failed to do their jobs.

"Something MUST be done. I must be SEEN doing SOMETHING!"

It comes from the logic of not giving a damn about the actual problem, and only caring about looking like you're doing something about it.

It comes from the logic of 'Sure there might be collateral damage, but I'm not going to face any of it so what do I care?'

It comes from the logic of having wanted to kill a particular law for years and seeing a perfect opportunity to do it now where you can paint anyone who tries to argue against you as supporting child exploitation.

Re: Where does the logic come from?

That is exactly how we do a lot of things. It's the "I have to do _something_!" attitude. Completely ignoring the 500 other ways already available to do something, some of them actually helpful or constructive. This behavior is then co-opted by those who really want to have the power to do something about something else entirely, going along for the ride in hopes of getting the extra power and tools.

For some, it is desperation. Or a sense of taking power over something wrong. For others it is a coldly calculated manipulation. Both believers and non-believers are equally stupid at some scale.

Blumenthal is

Does email count?

I think someone should send Mr. Blumenthal a letter saying they are a sex trafficker and solicit him to use their services. Then immediately in the same letter demand that he prosecute the email provider (federal government if you use his .gov email) for providing the ability to solicit him. Since you, the sex trafficker, have made them aware (in the same email no less), he needs to immediately prosecute all IT staffers for allowing said email to go through and not be caught by their filter.

I didn't see in the verbiage of SESTA that says that you get a pass out of incompetence or a grace period after which they are made aware. You are immediately liable for criminal charges the minute you 'know'. So follow up with a second email just to be on the safe side!

Next up... Targeting government

Step 1:So once this thing passes, everyone needs to start using their senators and congress critter's websites to post "dating" meeting places and times to "get together"....

Step 2:Sue the relevant parties (those sponsoring, not opposing this bill) for civil and criminal charges related to "dating" trafficking.

Step 3:Muahahahahahahahahaha laugh as they are hoisted on their own petard.

Sigh, if only the laws they write could actually be applied to them they might think twice about some of the stupid crap they try to get away with (and not just about the suitcases of cash they are getting away with).

I'm puzzled here. Seems to me that if a storefront puts up a big sign saying "Buy illegal drugs here", the appropriate response is to bust everybody inside for criminal stupidity--with a generous expression of gratitude for the folk who made finding the criminals so easy.

Apparently the good senator would prefer to pass new laws forbidding signpainters to include the letters "D", "R", and "G" on the same panel, because that ... enables sales of drugs.

Re:

Except, of course, the American legal system has been twisted and maimed by years of judgement that hamper police operations. So as an example, that sign in the store window would be meaningless without actual drugs purchased. They could just say the sign is a joke, a come on for selling snacks, what have you.

Even if drugs are sold, the legal system would generally limit legal responsibility to the single person who sold the drugs until a proper conspiracy is a proven, which would take months. In the mean time, plenty of drugs are sold.

The good senator would like companies which provide adverting and promotion space to be at least slightly responsible for the people they choose to do business with and the types of businesses they promote. He didn't say anything about sign painters - he basically talks about the internet equivalent of billboard ads or TV / Radio ads.

A matter of incentives

'Politician A didn't do anything about X' doesn't make for good positive PR, but it does make for great negative PR that can be used against them.

It's trivial for someone who wants their position to claim that they would have 'done something', and it would have worked, as unlike the other person they actually care, because words are cheap, and if they do manage to get the spot and 'do something' and it causes problems well clearly someone else bungled up their brilliant idea, and/or they just didn't go far enough.

You mean like the accountability to the citizens you allegedly represent who have been harmed time & time again by the unintended consequences of rushed stupid laws to "fix" problems?

This is a stupid law that magically is supposed to solve trafficking at the expense of others.

You demand that "victims" be allowed to sue BackPage for providing the platform that allowed them to be victimized.Please explain why parents who's children were murdered by gun toting bastards are denied that same satisfaction?

Helping dead kids parents is a better PR blitz, but I guess the gun lobby scares you more than doing the right things you claim need to happen to others.

Not Shocking Either

On the tail of my NY Times columnist who UNSHOCKINGLY didn't get technology details correct, it is SO MUCH less shocking that moronic technomorons who are elected constantly make insanely bad laws because they haven't even the most basic knowledge of all things technological.

I've said it before and I'll say it again. You get elected, you have to take a technology test. Depending on what sections you fail means you cannot vote on bills falling into those categories. Constituents don't like that? Don't elect technomorons.

Same thing with Judges. You get appointed to the bench, you take a technology test, a copyright test, a patent test, etc. You fail, you can't rule on any of those cases.

The test would be updated each year to reflect technology changes and everyone would have to take it each year. Fail, and you don't get to do anything related for another year.

Re:

Re: Re:

I don't have to wait for you to end up in jail before I know that your "girls for an hour at your hotel escort" service is a front for prostitution.

Put it another way: If you come to me and say "let's rob a bank, I have a gun, and this is the bank" and I decline, I still have knowledge of your intent to rob a bank. I don't have to wait for your to rob the bank to have knowledge of your intent.

Yes, it can be tricky, but the image Mike is trying to paint (that airBNB would suddenly be liable for a single escort property rental) is ludicrous and laughable overhype.